Citation Nr: 23011925
Decision Date: 02/27/23	Archive Date: 02/27/23

DOCKET NO. 18-48 669
DATE: February 27, 2023

REMANDED

Entitlement to compensation under 38 U.S.C.§ 1151 for bilateral leg amputations is remanded.

REASONS FOR REMAND

The Veteran had active service from April 1965 to February 1968, and subsequent service in the National Guard.

He passed away in July 2017, less than a month after filing these claims. Thereafter, the appellant, who is his surviving spouse, filed a Request for Substitution of Claimant Upon Death of Claimant in August 2017, and she was accepted as a substitute. Thus, this appeal is properly before the Board and is being continued with the appellant as the substitute claimant. 38 U.S.C. § 5121A.

The Board most recently remanded the case for further development in January 2020.  The case has since been returned to the Board for appellate review.

1. Entitlement to compensation pursuant to 38 U.S.C. §1151 for bilateral leg amputations

A remand is necessary in order to ensure compliance with the January 2020 Board remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Specifically, in the January 2020 Board remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain an addendum medical opinion and readjudicate the claim on appeal. Further, the Board directed that the VA opinion should address the appellant's contention that VA inappropriately treated the Veteran by putting him on antibiotics to which he was allergic; not admitting him for inpatient treatment upon finding the wounds were infected; and/or by delaying debridement of his wounds. Moreover, that in rendering an opinion, the examiner should consider the August 2018 and November 2019 letters from the appellant's attorney further detailing the appellant's contentions.

While the AOJ did obtain a January 2020 medical opinion, that opinion did not address the appellant's contentions as directed by the Board. Indeed, the examiner did not address the appellant's assertion that the Veteran was provided improper antibiotics, that the Veteran was not admitted for inpatient treatment when his wounds were infected, and that debridement of the Veteran's wounds was delayed. Accordingly, a remand is required to obtain a VA opinion that complies with the January 2020 Board remand.

The matters are REMANDED for the following action:

1. Obtain a VA addendum opinion regarding the appellant's claim for compensation under 38 U.S.C. §1151 for the Veteran's leg amputations in accordance with the January 2020 remand directives. 

As the last opinion did not, this opinion should be sure to address the appellant's specific contentions that the VA negligently and inappropriately treated the Veteran by 

(1) putting him on antibiotics to which he was allergic; (2) not admitting him for inpatient treatment upon finding the wounds were infected; and/or 

(3) by delaying debridement of his wounds.

In rendering an opinion, the examiner should consider the August 2018 and November 2019 letters from the appellant's attorney further detailing the appellant's contentions.

2. Confirm that any VA opinions provided comport with this remand, and undertake any other development found to be warranted.

4.  Then, readjudicate the remaining issue on appeal.  If the decision is adverse to the appellant, issue a supplemental statement of the case and allow appropriate time for response.  

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	I. Cannaday, Counsel